1. VTS legal aspects and liability issues 1 Matti Eronen, LLM traineed in court Legal Counsel, maritime matters Doctoral postgraduate IALA VTS Symposium 2016 8. – 12. August 2016

2. IALA VTS Symposium 2016 2 Contents of this presentation Finland Operational challenges Finnish Tranport Agency VTS from Legal point of view International legislation Liability matters caselaw maritime accident investication reports VTS versus AtoN VTS versus ATC

3. IALA VTS Symposium 2016 3 Finland

4. IALA VTS Symposium 2016 4 Operational challenges Limited visibility Alternating routeing Special means to get pilot onboard

5. IALA VTS Symposium 2016 5

6. 16.3.2014 6 GOFREP = Russian, Estonian and Finland common reporting and Traffic Management for Gulf of Finland GOFREP is a Mandatory Ship Reporting System at Gulf of Finland, adopted by the IMO (MSC.139 (76) and MSC.231 (82)), in accordance with SOLAS Regulation V/11. During wintertime when the sea is covered by ice, ships reporting to the traffic centers will receive information on the recommended route through the ice as well as the name of the icebreaker and its working channel. During difficult ice conditions the traffic separation schemes in the Gulf of Finland, or parts of these schemes, may be temporarily withdrawn. Information about the decision is given in daily ice reports and navigational warnings.

7. 7 Responsible for the Finnish roads, railways and waterways and the comprehensive development of the transport system. Promotes traffic safety and the balanced and sustainable development of the regions. Enables smooth, efficient and safe travel and transport. Multidisciplinary expert organisation specialising in transport, and operating under the jurisdiction of the Ministry of Transport and Communications VTS Symposium 2016 Finnish Transport Agency contributes to the development of Finland’s transport system

8. ● SOLAS V/12: ”Vessel Traffic Services” ● IMO Resolution A.857(20): ”Guidelines for Vessel Traffic Services” ● IMO MSC/Circ.952 and MSC/Circ/1065 (Standards for Personnel) ● IALA VTS Manual (Navguide) ● IALA Standards, Recommendations, Guidelines and Model Courses ● IALA Guidelines & Criteria for VTS on Inland Waterways 8 VTS Symposium 2016 VTS International legal background

9. SOLAS V/12: VTS contribute to safety of life at sea, safety and efficiency of navigation and protection of the marine environment. VTS is to be established where the volume of the traffic or degree of risk justifies. Res A.857(20): A service implemented by a Competent Authority, designed to improve the safety and efficiency of vessel traffic and to protect the environment”. The service should have the capability to interact with the traffic and to respond to traffic situations developing in the VTS area. 9 VTS Symposium 2016 What is VTS from legal point of view?

10. Res A.857(20) para 2.2.1.: legal basis for the operation of a VTS is provided for and VTS is operated in accordance with national and international law. No direct international legislation about liability left to national level. Requirement for fault or negligence and causal link. 10 VTS Symposium 2016 VTS Liability legislation

11. SOLAS V/12; Res A.857(20; MSC/Circ.952, MSC/Circ/1065; IALA VTS Manual (Navguide); European Union Directive 2002/59/EC etc IALA VTS Symposium 2016 11 Every case is considered separately, taking into account the circumstances of the accident, how the VTS has been arranged and how the international rules and legislation have been followed. The coastal stations in charge of monitoring the compliance with vessel traffic services and ships' routing systems are obliged to have sufficient and properly qualified staff available, as well as appropriate means of communication and ship monitoring and that they operate in accordance with the relevant internationa legislation and guidelines”. Causality

12. ● No direct caselaw. ● There are several Maritime Accident Investigation Reports, where action of VTS has been mentioned. However: It should be noted that the purpose of the investigations is to clarify the actual events leading to the accident. The aim of the investigations is not to establish legal or economic liability. The reports are not intended to be used for the purpose of litigation. ● Few examples: M/T EXXON VALDES grounded, 24.3.1989 / USA. M/T BRITISH TRENT and M/V WESTERN WINNER collision, 3.6.1993 / UK. M/V COSTA CONCORDIA grounding 13.1.2012 / IT. M/T AUDACITY and M/V LEONIS collison 14.4.2007 / UK. M/V KAREN DANIELSEN collision with Great Belt Bridge, 3.3.20015 / DK. 12 VTS Symposium 2016 Caselaw and Investigation Reports

13. KAREN DANIELSEN: “In order to prevent the collision, the VTS-centre should have followed the ship on the radar and realized that the ship was not turning as expected”. Division for Investigation of Maritime Accident, Danish Maritime Administration Report 20052332/17.8.2005 VTS Symposium 2016 16 AUDACITY AND LEONIS: ”VTS procedures for managing traffic in the precautionary area were insufficient. VTS operators were unaware of the poor visibility in parts of the VTS area. VTS did not have a formal operating procedure for periods of reduced visibility. Marine Accident Investigation Branch, United Kingdom Report No 2/2008 EXXON VALDEZ: “VTS lost radar contact because VTS did not use a higher range scale. Had it been used, the vessel probably could have been tracked as far as the site of the grounding”. “Warning from VTS might have alerted the third mate to the danger.” US National Transportation Safety Board (NSTSB) report PB90-916405 NTSB/MAR-90/04

14. Reason why this question is interesting: Liability clauses of many international conventions (such as HNS, Wreck Removal etc): ” The registered owner shall be liable unless maritime casualty is caused by the negligence or wrongful act of the maintenance of lights or other navigational aids.” Question: Is VTS part of AtoN, what are the similarities? 14 VTS Symposium 2016 VTS versus AtoN

15. SOLAS V / 12 (VTS): “VTS contribute to safety of life at sea, safety and efficiency of navigation and protection of the marine environment, adjacent shore areas, work sites and offshore installations from possible adverse effects of maritime traffic”. SOLAS V / 13 (AtoN): “… such aids to navigation as the volume of the traffic justifies and degree of risk reguires.” ref to IALA Recommendations and guidelines and to SN/Circ.107, Maritime Buoyage systems. IALA VTS Manual (Navguide): “A marine aid to navigation is a device or system external to vessels that is designed and operated to enhance the safe and efficient navigation of vessels and/or vessel traffic”… IALA VTS Symposium 2016 15 Both enhance the safe and efficient navigation.

16. IALA VTS Manual (Navguide): “pilotage and Vessel Traffic Services (VTS) are covered in the chapter since these services can also satisfy the definition of an aid to navigation”. IALA wordbook: ”a visual, acoustical or radio device to assist the safe and easy movement of ships”. Alternative term: Seamark, which is most commonly used for a visual device. 16 IALA Navguide, definitions: VTS Symposium 2016

17. National legislation in Finland : In Finnish national legislation VTS and AtoN are separated and covered with separate Codes. Case: MT JOSE MARTI grounding on 7th January 1981. - Svea Supreme Court in Sweden held that the pilot had caused the grounding. Court held that pilot is not a part of AtoN. Ship was held liable (Sweden, Svea Hovrätt, ND 1987 s. 64). Conclusion: VTS and AtoN enhance the safe and efficient navigation and have similarities. However legally taken they are different systems. 17 VTS Symposium 2016

18. VTS ● Information and assistance service to commercial maritime traffic. ● Local service in territorial waters. ● Ships are themselves responsible for collision prevention, but VTS gives assistance. ATC (air traffic control) ● Safe and fluent air traffic. ● Local service but has role in international air space. ● Aircraft is required to follow all instructions during normal flight operations. Centralised control. 18 VTS Symposium 2016 VTS versus ATC ATC is legally a traffic management system, whilst VTS is an assistance service. VTS and ATC have different legal basis on liability matters. However many similarities between the systems. They share common goals.

19. Thank you for your attention! matti.eronen@fta.fi Questions ? Comments?